Expert Witnesses – Discovery of Reports

The ABAs House of Delegates voted 207-137 to recommend adding to Federal Rules of Civil Procedure Rule 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.

A Law.com article on the votes reports that "[t]he proposed change was prompted by varying judicial interpretations of 1993 amendments that expanded permissible expert discovery from "materials relied on" by an expert to "any data or other information considered by an expert" in forming his or her opinion. Some judges protect drafts until experts turn them over to counsel, while others require counsel and experts to turn over all drafts. "